Ram Saran vs State of H.P. and Others

Lokeshwar Singh Panta, J.—By way of this petition under Article 227 of the Constitution, Petitioner Ram Saran has challenged the orders dated 28.8.1991 (Annexure-PC) and dated 15.3.1994 (Annexure-PD) passed by Sub Divisional Officer (Rural), Shimla and affirmed by Commissioner, Shimla Division whereby the Petitioner was ejected from the Government land.

Gram Panchayat Dudhalti, Pargana Kaimili, Tehsil and district Shimla passed resolution No. 13 (Annexure P-A) in its meeting held on 8.10.1970. Through that resolution a piece of Shamlat land comprised of Khasra No. 193 measuring 14 bighas 19 biswas was put to public auction on Chakauta. The Petitioner was the highest bidder. The land was leased out to the Petitioner for a period of 5 years at the agreed upon rate of Rs. 1.10p per bigha per year i.e. total Rs. 16.50p per annum for cultivation. Petitioner pleaded that he was put in possession of the land pursuant to the lease deed and made it cultivable and also constructed a house for his residence. He pleaded that the Petitioner had been coming in peaceful possession of the land and the house since 1970, however, in the year 1991, Tehsildar (Rural), Shimla initiated proceedings against him u/s 163 of the Himachal Pradesh Land Revenue Act, 1953. The Petitioner contested the proceedings on the ground that since the land was granted on lease to him by Panchayat, the proceedings u/s 163 could not be initiated as his status was not that of encroacher. Tehsildar(Rural) , Shimla referred the matter to the Sub Divisional Officer (Rural), Shimla(Respondent No. 3) u/s 4 of the Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974 (Act No. 18 of 1974) for decision. The Petitioner filed his reply interalia, pleading that at the time when the land was given to lease to him, it was Banjar and after breaking the same he made it cultivable and started sowing his crops. He also constructed a house on the above land and has been residing in it. No objection was raised either by the Panchayat or anybody else at the time of making the land fit for cultivation and construction of the house. He pleaded that the said lease be treated to have been granted by the State and necessary orders be made in this behalf. Respondent No 3 passed an order that the Petitioner had no legal right to cultivate the land after the expiry of 5 years and for this reason the cultivation made by him after 1975 was declared as illegal and he was directed to surrender the possession of Khasra No. 193 measuring 14 bighas 19 biswas immediately.

The Petitioner filed an appeal under Act No. 18 of 1974 before the Commissioner Shimla Division. The Commissioner confirmed the order of the Sub Divisional Officer(Rural) Shimla and ejected the appeal. Both these orders are under challenge in this petition. Reply on the affidavit of Shri V.C. Pharka, Collector, Shimla has been filed on behalf of the Respondents. In the reply the Respondents have admitted that the land was leased out to the Petitioner for a term of 5 years by the Gram Panchayat commencing from 8.10.1970 and ending on 8.10.1975. However, it is denied that the Petitioner constructed a house over the land it is submitted that the land has vested in the Government on enforcement of the Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974. The lease of the Petitioner stands terminated after the expiry of 5 years and as such, he had no locus standi either to remain in possession or to develop the suit land.

Heard Shri G.C. Gupta, learned Counsel for the Petitioner and Shri M.L. Chauhan, learned Assistant Advocate General for the Respondents. There is no dispute that the land was granted to the Petitioner by Gram Panchayat Dudhalti, Pargana Kaimili, Tehsil and District Shimla by lease deed for a period of 5 years commencing from 8.10.1970 and ending on 8.10.1975 at the agreed upon rate of Rs. 16.50p per annum. There is also no dispute that prior to the enforcement of the Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974 (Act No. 18 of 1974) all Shamlat land vested in the Panchayats who in turn could lease out such land. The Act No. 18 of 1974 received the assent of the governor on the 9th August, 1974. u/s 3 of Act No. 18 of 1974 all rights, title and interest vested in a Panchayat shall stand extinguished and all such right, title and interest shall vest in the State Government free from all encumbrances. The Respondents initiated proceedings against the Petitioner u/s 4 of the Act. Section 4 deals with the treatment of leases made by the Panchayats and empowers the Collector to call for from Panchayats in his District, the record of leases, contracts or agreements entered into by the Panchayats in respect of any land vested in the Panchayats and examine such records for satisfying himself as to the legality or propriety of such leases, contracts or agreements. On examination of the record and after making such inquiry as he deems fit, the Collector if feels satisfied that such leases, contracts or agreements are in accordance with the provisions of the Punjab Village Common Lands(Regulation) Act, 1961 and rules, he shall pass orders declaring such leases, contracts or agreements having been made on behalf of the State Government under Sub-Section 2. If the Collector finds that a lease, contract or agreement has been entered into in contravention of any of the provisions of the said Act or the Rules made thereunder or has been entered into as a result of fraud or concealment of facts or is detrimental to the interest of the estate right-holders, he shall cancel such a lease, contract or agreement and such person shall be liable to ejectment under the provisions of Section 150 of the Punjab Land Revenue Act, 1887. However, under the proviso, no order under Sub-Sections 2 and 3 of Section 4 shall be passed by the Collector without affording an opportunity of being heard to the parties to the lease, contract or agreement.

Admittedly, no orders have been passed by the Respondents against the Petitioner during the existence of the period of lease of the Petitioner which was to expire on 8.10.1975 and the Petitioner remained in possession of the land after the expiry of the period as well.

The State had not cancelled the lease of the Petitioner in pursuance to the provisions of Section 4 of the Act and the Petitioner remained in possession of the disputed demised property till 1991 when proceedings were initiated against him. Admittedly, the Petitioner was occupying the disputed property under a valid lease upto 8.10.1975 and thereafter, he was holding over the property leased to him.

The provisions of Section 5 of the Act are also not applicable in the present case. Under this section where the land vested in the State Government has been encroached upon by any person before or after the commencement of the Act, the Revenue Officer may of his own motion eject such person in accordance with the provisions of Section 163 of the Himachal Pradesh Land Revenue Act in this case, the Petitioner cannot be termed to be an encroacher and cannot be dealt with under the provisions of this Section as well. He was in possession of the disputed land on the basis of the valid lease uptil 8th October, 1975 and thereafter was holding over the property and in such an eventuality he cannot be termed to be an encroacher. However, the Petitioner is definitely said to be in an unauthorised occupation of the Government land. The orders passed by the authorities'' below ejecting the Petitioner from the land are illegal and void and deserve to be quashed. A perusal of'' the order dated 15.3.1994 (Annexure-PD) passed by the Commissioner, Shimla Division shows that it is an order without assigning any reasons. It was incumbent upon the Appellate Authority to have properly appreciated the provisions of the law and applied the same in the facts and circumstances of the present case. This order is non- speaking order without giving reasons in rejecting the appeal of the Petitioner.

For the reasons stated above, the provisions of Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974 are not at all applicable in the present case and no proceedings could have been initiated against the Petitioner under this Act. Consequently, order of Sub Divisional Officer(Rural) Shimla dated 28.8.1991(Annexure PC) and subsequent order dated 15.3.1994 passed by the Commissioner, Shimla Division(Annexure -PD) are hereby quashed and set aside. The petition is allowed. However, the; Respondents are at liberty to initiate proceedings against the Petitioner under the provisions of law which shall be applicable in the facts and circumstances of the present case and eject him in accordance with law. This order shall not prejudice the State from taking such action against the Petitioner.

Costs on parties.